Lease law: Definition of 'one family only' / 'single private dwelling'?

[derekunderwood01]

Hi guys, I've now heard back from thr leasehold advice center and there reply was very vague - all the stated was that based on previous decisions there are occasions where friends can be considered family.

I wrote back and stated that I understood that in certain circumstances (ie step mothers/ adopted parents etc) this could be ok, but explained that there are two couples, one paying rent who met at uni and that this is clearly NOT a family situation, he then wrote back stating that he understands the details and that he still cannot provide a definite answer and that the FTT will have to decide for sure.

It seems to me like they are very busy at the leasehold advice center and he even missed the 'one family only' clause in the lease which I had to point out to him. Seems to me like they just skim it and fire off a quick email,..

Ultimately, this is going to have to be decided at the FTT.. As no one can provide a definite answer.. My question is what do you guys think are my chances at the FTT considering I have the fact that there are two couples, one paying rent to the other, that all are unrelated and met at uni, and the fact there is a nuisiance issue?

I have looked over many of the tribunal decisions and cannot find a document that matches this situation exactly - as evet case is different. There are some where four unrelated students living together were found to be in breach of the 'family' clause, and one where an old family friend (one person as opposed to two paying rent) was allowed to stay as 'family'....

From what I gather there is also a case on my side for the property not bring big enough or suitable enough for two couples... Family or otherwise.

If you were me, would you fancy your chances at the ftt?

[derekunderwood01]

Hi guys, I'd like to post the reply i recieved from the Leasehild advice center. What worries me is that the guy here says that the tenants are allowed to defend themselves on the basis they live as 'one family' but then goes on to quote a lease that restricts it to 'household' as opposed to family. Surely a lease that stipulates 'one family' is completely different to a lease that states 'one household'? 'one household' is far more vague than 'one family'... Please let me know what you think:

*
Thank you for your enquiry of 16/10/2013.
*
Apologies, comparing the copy of your lease that I printed out with the photos that you sent in, I can see I did not have a copy of the Third Schedule which contains the restriction against one family only.
*
Unfortunately, as per the extract I sent you, the fact that the upstairs neighbours are not related by blood or marriage is not, in itself, sufficient to guarantee a breach of the restriction. *The facts of each case are relevant, and your neighbours are entitled to defend themselves on the grounds that they do, in practice, live as a family. See again:
*
[3064]
Where the covenant was to use ‘for the purpose of a private residence in the occupation of one household only’, it was held that the mere taking in of one paying guest who shares the family life as far as possible would not be regarded by a reasonable man as a breach of the covenant. The way in which those who are sharing the accommodation under the same roof do or do not live as one family is a relevant circumstance and also the size and layout of the premises. The covenant has to be interpreted as if entered into by two reasonable people familiar with the premises and their location. Nothing in the covenant here in question precluded a true sharing between a tenant and a friend or friends. But when a person comes in answer to an advertisement and there is no real sharing of meals and of the general social life to a degree that she lived as a member of the family, then there is a breach of the covenant1. Where a covenant to use as a private dwelling house is followed by another against subletting of a part without consent, the tenant may with consent sublet a part restricted to use as a private dwelling house2, but where the second covenant is against subletting the whole house, then only the use of the whole as private residence is allowed and subletting of a part is a breach3. In the absence of an express covenant preventing it4, the sale by auction of furniture belonging to the occupier will not involve a breach5.
*
1 Segal Securities Ltd v Thoseby [1963] 1 QB 887, [1963] 1 All ER 500, applied by the Court of Appeal in Heglibiston Establishment v Heyman (1977) 36 P & CR 351.
2 Downie v Turner [1951] 2 KB 112, [1951] 1 All ER 416.
3 Dobbs v Linford [1953] 1 QB 48, [1952] 2 All ER 827, CA. See para HR A[3063], nn 10, 11.
4 Toleman v Portbury (1872) LR 7 QB 344, Ex Ch.
5 Reeves v Cattell (1876) 24 WR 485.
*
What I suggest doing is looking through First Tier Tribunal decisions to get a feel for how they deal with this type of alleged breach. *You can use key words to narrow your search. Start, for example, with the search that I tried; having looked briefly through the results at least one is directly relevant: http://search.freefind.com/find.html...+family+lodger
*
Yours sincerely,

S.

Can family also be taken to mean household? Surely if the lease states family it doesn't mean household?

[derekunderwood01]

I have heard back again from the lease advice center and draw your attention to the following paragraph which states that the clause in the lease 'not to do anything that will cause annoyance or nuisance to any other neighbour, also covers renting out rooms or subletting - for example doing anything that may increase the noise or nuisance to other owners adjoining flats:


"(b) Annoyance
[3050]–[3060]
Where the covenant is against any act which may lead to ‘annoyance, nuisance, or damage’, it is wider, and is broken by anything which disturbs the reasonable peace of mind of an adjoining occupier. Annoyance and grievance are not limited to things that would amount to a nuisance at common law. If that were so, such a covenant would be unnecessary. Annoyance means anything which raises an objection in the minds of reasonable men. The establishment of a hospital for outdoor patients is a breach if sensible people feel a reasonable apprehension of risk of infection and interference with the plea-surable enjoyment of their houses for ordinary purposes. It need not amount to physical detriment to comfort, nor need the adjoining occupier be a tenant of the same lessor1. But the conduct of a properly equipped and well managed hospital is not per se a noisy, noisome, or offensive business2. To sublet parts of the premises to various tenants may amount to a breach of a covenant not to do anything which might in the judgment of the landlord be or grow to his injury or annoyance or that of their tenants or occupiers3. But allowing a pipe to burst in cold weather was held not to be an annoyance4. A landlord may obtain an interlocutory injunction where the annoyance is to other tenants of his as there is an interference with his business of letting premises5. Where a freehold transfer of land on a residential estate contained restrictive covenants against (1) building without consent and (2) doing anything that might be or become a nuisance or annoyance to the owners or occupiers of the estate, the construction of a three-storey extension by one house owner which restricted a river view enjoyed by others on the estate was held to be an infringement of the second of these covenants. These two covenants were not to be read as mutually exclusive: so the width of the second covenant was not limited so as to apply only to “activities” but could also extend to the construction of a building which, when built, would be an “annoyance” notwithstanding that the first covenant also contained regulations against building6.
*
1*Tod-Heatly v Benham*(1888) 40 Ch D 80 at 98, 99, CA;*Macher v Foundling Hospital*(1813) 1 Ves & B 188;*Errington v Birt*(1911) 105 LT 373*(fried fish business);*Bramwell v Lacy(1879) 10 Ch D 691.
2*Frost v King Edward VII Welsh National Memorial Association for the Prevention, Treatment and Abolition of Tubercolosis*[1918] 2 Ch 180*(where it was held that there was no risk of infection or danger to neighbours).
3*Barton v Keeble*[1928] Ch 517;*Day v Waldron*(1919) 88 LJKB 937*(conversion into flats to the injury of the landlord). As to ‘annoyance’, see also*Wood v Cooper*[1894] 3 Ch 671(erection of a large screen), and*Seaward v Paterson*(1896) 12 TLR 525*(boxing exhibitions).
4*C B Printers Ltd v P and C Manufacturing Co Ltd*[1967] EGD 569.
5*Hampstead and Suburban Properties Ltd v Diomedous*[1969] 1 Ch 248,*[1968] 3 All ER 545.
6*Davies v Dennis**[2009] EWCA Civ 1081.


The key line here is 'To sublet parts of the premises to various tenants may amount to a breach of a covenant not to do anything which might in the judgment of the landlord be or grow to his injury or annoyance or that of their tenants or occupiers3'

Indeed if the owner above is not in breach of the family clause (which with two unrelated couples who met at uni, one paying rent for a room they surely are) - they are almost certainly also in breach of causing an annoyance or nuisance by the mere act of subletting... With additional reference the fact that there has been an ongoing (documented) nuisance as a result of another couple being up there for two years now...

What are your thoughts on all this guys, as well as my chances at the ftt?

[DNM2012]

What are your thoughts on all this guys, as well as my chances at the ftt?

Well it seems the LAS is giving you the same advice as you have been given here.
Based on the evidence you currently have very slim.

Build the evidence on the nuisance side of things. in my case which I would say is much stronger I have amassed the following evidence-

4 documented LA visits, 18 month diary of what has happened, noise etc, dates and times tenants moved in/out, CCTV and photo evidence, copies of advertisements for rooms from internet and local shops, evidence of HMO safety requirements being installed.

I still don't feel confident I would win at FTT.

[leaseholdanswers]

Well now you are I am sorry to say wallowing in this.

I made it clear some time ago that your primary option was to deal with noise nuisnance allied to the underletting.

All you now have is a bit more info confirming that. Get on with hassling the landlord to respond once they have advice, pass this on.

[derekunderwood01]

DM what is your exact situation as I think I have a pretty good chance at the ftt... The lease states srrictly family, and they are are all unrelated, two couples and paying rent and she has already admitted to this in writing (so presumably no need for evidence) . I also have over a year of documented nuisances.... The lease prohibits nuisance being caused.

Again LHAs argument that the two go hand in hand carries even more weight...

As far as I can see the area I fall down on is whether or not they share meals - but given the fact she has already admitted taking rent and that they are couples, the ftt will surely not stretch the definition of the term 'one family' that far?

[derekunderwood01]

Sorry for banging on about the 'family' clause LHA, but I've been reading through some of tribunal assessments and would like to submit the following:

The Tribunal does not accept that the word "family" in the phrase "other than a single private dwelling or dwellings in the occupation of one family" gives rise to doubt or ambiguity in meaning in this context of this lease. There is no need to resort to the principle of contra proferentum by which we understood the Respondent to argue the Lease should he construed against the grantor. In any event the Tribunal does not know whether the landlord was solely responsible for the drafting of the Lease or whether it was the result of negotiation or joint drafting with the original lessee or its legal advisers. If so the principle of contra proferentum would not arise.

If The Tribunal is wrong in that conclusion, it would still seek to give effect to the meaning of the words "one family" in this covenant. The Tribunal does not accept the Respondent's Counsel's submissions those words add nothing to the words "single private residence" and should be construed solely as a "household". The Tribunal considers the draftsman of' this clause. which is a variation on a well known clause in leases, would have had in mind the decisions such as Segal Securities v Thoseby and lendler v Sproule and was intending to prohibit, among other things, the taking in of individual paying guests or tenants who in reality were not part of a family group. Had this clause been directed solely or mainly to prohibiting a business user, quite different words would have been used.

The Tribunal agrees with the Applicant's argument that the words in paragraph I I of the First Schedule requiring user as a single private dwelling in the occupation of "one family - have a different meaning from restricting user "as a family" which suggests occupation in the style or manner of a family.*

Link:*http://www.lease-advice.org/decision...168pdf/267.pdf


In the above situation four unrelated people living together and paying rent were found to be in breach of the 'one family' clause. The lease we have clearly states 'a single private residence in the occupation of one family only'... As opposed to 'as a family',

This looks promising...

[DNM2012]

The evidence in that case is very different to yours. You have 2 couples living together, sharing meals and a social life that COULD be determined as a family group, that property was clearly occupied by a variety of transient unrelated students.

You have been advised by LHA and Lawcruncher, two very knowledgable contributors to this site that your argument is far from concrete, Lease have advised you the same thing also.

I can tell you from my own experience, research and legal advice I received that I have come to the same conclusion. I don't think you will get anybody to tell you different.

I very much doubt your FH will be advised to act solely on the single family clause, but you have been advised you have an argument for nuisance linked to the single family issue, use it.

In my case the flat above is being used as a 4 room HMO, each room is occupied by 1 or 2 unrelated people, that neither eat, socialise or are related to each other, the occupancy changes on a regular basis. My lease contains the single family clause, and also a restriction on subletting part of the property, along with the usual nuisance clauses. While these issues are obvious breaches to me, I have learned that proving it is one issue and there are a whole host of other factors to consider, would the FTT agree, hopefully yes, but by no means a certainty until all the evidence is placed in front of them.

[leaseholdanswers]

Wallowing

[derekunderwood01]

DN - the evidence in fact is very similar. They are all unrelated - if you read it in its entirity that particular case also took note of whether or not they were friends beforehand. Regardless of the exact circumstances, from my research it is about proving exactly WHAT the lease MEANS. The lease in that case has EXACTLY the same wording as my lease by use of the word ''family' in the context of 'one family' as opposed to 'as a family'. It states - as we have already mentioned here that family in that context should NOT be taken to mean simply one household - as the above owner is attempting to argue, and that the clause in the lease is VERY CLEAR.

All in all - regardless of circumstances or situation it is about proving what the lease actually means, and this is a valuable piece of evidence to prove that a tribunal has considered thus issue and does NOT consider the use of the term 'one family' as being - ambiguous - I.e. - household.

I might also add that the second couple above were students when they moved into the property and that the same case found the party to be in breach of the 'family' clause merely by the fact they were students.

LHA - I'm not sure quite what you mean by wallowing. We all have to construct a case here and all this information is relevant. The nuisance aspect undoubtedly is a big part of it - if not the major part, but naturally more time has to be spent on interrogating the less obvious breaches of the lease in order to construct a 'sound' case. I am not 'wallowing' I am merely sharing any new evidence I come across in an attempt to gain further clarification.

As I mentioned - the lease also states not to 'do any act whatsoever that may be or grow to be an annoyance or nuisance to any other adjoining property' and that the lease advisory service has sent me evidence that the mere act of renting out a room to friends could be considered an act ehich may be or grow to be an annoyance To another occupier - this is ALL relevant information,

[derekunderwood01]

While I'm at it - can anyone recommend a good day/night CCTV security camera?

[leaseholdanswers]

I say wallowing and earlier about losing perspective as by the language and approach I can recognise the signs-all you are doing is trying to deal with your problem by diverting your frustration into research. However, none of this posting helps you, it is for your landlord to take advice and decide whether there is a case and ability to act. Pass on the lease reply to them.

You need to concentrate on amassing a record for noise nuisance while you wait for the LL's reply.

Over posts and the advice as much earlier, stands.

I say this not to be rude or abusive but I have seen this so many times.

As for CCTV you cannot put this in to monitor the common parts as it opens you to claims of harrassment.

[DNM2012]

As for CCTV you cannot put this in to monitor the common parts as it opens you to claims of harrassment.

LHA is correct, but there is nothing to stop you having it in your flat, a window for instance.

But in your case I doubt it will really help you, and might cause you further problems.

My CCTV camera is in my window, they know it is there and is primarily for security.

[derekunderwood01]

I am directing all my 'frustration' into research LHA because at some point I may have to present all this research to a tribunal - and, as you say - I will have to present a comprehensive argument and cannot rely on the FFT 'stumbling upon' anything I don't submit. All this is relevant to forming a case - and the records of nuisance are already extensive and ongoing.

I am a little confused as to why the managing agent is seeking legal advice from a solicitor when - by my complaints of nuisance ALONE I have the ability as an owner to force the agent to take action on the above owner as per the lease... Any ideas?

[leaseholdanswers]

Well no you won’t. The freeholder/landlord will take any case forward as a breach , and at best you will be a witness and a complainant, not the claimant.
If the enforcement covenant is not qualified, if the advice is that there is no real prospect of success, then you may be required to get a court order to require them to act. No LL or Agent will go forward without taking legal advice as they should and in any event will not entertain proceedings themselves without representation. You will be required to indemnify them for all costs in all circumstances.

Now you might make through your research a friend of them and encourage them but as much as the problem directly affects you, under the lease it is the landlords perogative, at your cost, even if you(can) have to compel them.


The only thing that you can do yourself is the noise nuisance issue as explained as a private prosecution in the magistrates court but the freeholder need not be party to that.